Memo

TITLE OF BILL: An act to amend the penal law, in relation to amending the crime of possessing an obscene sexual performance by a child to include knowingly accessing such material with intent to view

PURPOSE: This bill would amend the Penal Law to more effectively ban the possession of a sexual performance or an obscene sexual performance by a child.

SUMMARY OF PROVISIONS: Section one of the bill would amend Penal Law §263.11 to prohibit the knowing access with intent to view of an obscene sexual performance by a child.

Section two of the bill would amend Penal Law §263.16 to prohibit the knowing access with intent to view of a sexual performance by a child.

Section three of the bill would amend Penal Law § 263.00 to clarify that the various "possession," "control" and "promotion" crimes related to obscene sexual performances by a child do not apply to attorneys who may have access to such material solely in the course of their representation of defendants charged with such offenses.

Section four provides for an immediate effective date.

EXISTING LAW: Penal Law §§263.11 and 263.16 do not specify that accessing and viewing sexual performances by a child are prohibited.

STATEMENT IN SUPPORT: The State has a compelling interest in safeguarding the physical and psychological well-being of minors. To that end, Penal Law §§263.11 and 263.16 were enacted in 1996 prohibiting the possession of child pornography. Those provisions were designed to destroy the market for the exploitive use of children. However, in a case decided on May 8, 2012, the New York Court of Appeals held that existing law did not prohibit "accessing and viewing" child pornography on the internet (People v Kent, 2012 NY Slip Op 03572 (May 8, 2012)). The Court specifically invited the State to amend the Penal Law to criminalize accessing child pornography with the intent to view it on the internet. This bill would address that glaring loophole.

BUDGET IMPLICATIONS: This bill would have no budget implications for the state.

EFFECTIVE DATE: This bill would take effect immediately.

Text

IN SENATE -- Introduced by Sen. GOLDEN -- (at request of the Governor)
-- read twice and ordered printed, and when printed to be committed to
the Committee on Rules
IN ASSEMBLY -- Introduced by COMMITTEE ON RULES -- (at request of M. of
A. Lentol, Simanowitz, Colton, Weisenberg, Skartados, Cymbrowitz,
Schimminger, Roberts, P. Rivera, Brindisi, Barrett, Bronson, Gabrys-
zak, Russell, Zebrowski) -- (at request of the Governor) -- read once
and referred to the Committee on Codes
AN ACT to amend the penal law, in relation to amending the crime of
possessing an obscene sexual performance by a child to include know-
ingly accessing such material with intent to view
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 263.11 of the penal law, as added by chapter 11 of
the laws of 1996, is amended to read as follows:
S 263.11 Possessing an obscene sexual performance by a child.
A person is guilty of possessing an obscene sexual performance by a
child when, knowing the character and content thereof, he knowingly has
in his possession or control, OR KNOWINGLY ACCESSES WITH INTENT TO VIEW,
any obscene performance which includes sexual conduct by a child less
than sixteen years of age.
Possessing an obscene sexual performance by a child is a class E felo-
ny.
S 2. Section 263.16 of the penal law, as added by chapter 11 of the
laws of 1996, is amended to read as follows:
S 263.16 Possessing a sexual performance by a child.
A person is guilty of possessing a sexual performance by a child when,
knowing the character and content thereof, he knowingly has in his
possession or control, OR KNOWINGLY ACCESSES WITH INTENT TO VIEW, any
performance which includes sexual conduct by a child less than sixteen
years of age.
Possessing a sexual performance by a child is a class E felony.

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12161-01-2

S. 7742 2 A. 10713

S 3. Section 263.00 of the penal law is amended by adding a new subdi-
vision 9 to read as follows:
9. FOR PURPOSES OF SECTIONS 263.10, 263.11, 263.15 AND 263.16 OF THIS
ARTICLE, THE TERMS "POSSESSION," "CONTROL" AND "PROMOTION" SHALL NOT
INCLUDE CONDUCT BY AN ATTORNEY WHEN THE PERFORMANCE WAS PROVIDED TO SUCH
ATTORNEY IN RELATION TO THE REPRESENTATION OF A PERSON UNDER INVESTI-
GATION OR CHARGED UNDER THIS CHAPTER OR AS A RESPONDENT PURSUANT TO THE
FAMILY COURT ACT, AND IS LIMITED IN USE FOR THE PURPOSE OF REPRESEN-
TATION FOR THE PERIOD OF SUCH REPRESENTATION.
S 4. This act shall take effect immediately.

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